Assisted suicide and mental capacity
By Paul Trudelle
There has been much in the media lately on the British Columbia Supreme Court decision concering assisted suicide.
In the decision, Carter v. Canada (Attorney General), 2012 BCSC 886 CanLII, the court struck down the provision in the Criminal Code that prohibits physician-assisted suicide.
(Section 241 of the Criminal Code provides that “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”)
The lengthy, well-organized decision deals with the question in great detail.
One aspect of the decision particularly pertinent to our area of practice addresses the government’s position that the impugned section is necessary in order to avoid the risk of wrongful death of incompetent persons. The government argues that it can be difficult to determine whether a person is capable of making a decision to end their own life.
The court accepted evidence to the effect that, even taking into account the possibility of cognitive impairment or depression in patients, and the possibility that physicians may be influenced by inaccurate assumptions about their patients, it is feasible for physicians to assess competence with high reliability.
The court concluded, on this narrow point, that it is feasible for properly-qualified and experienced physicians to reliably assess patient competence, including in the context of life-and-death decisions, so long as they apply a very high level of scrutiny appropriate to the decision and proceed with great care. See Toronto Estate Law Blog